Deciphering Senator Frist

As we are about to embark on the confirmation process for new Supreme Court Justices, everyone assumes that Senate Majority Leader Bill Frist will play a major role in the outcome and that he will try to advance the agenda of social conservatives within the Republican Party.

Accordingly, it is timely to take another look at the role Frist, R-Tenn., played earlier this year when the Senate considered legislation giving the federal courts jurisdiction to review the Florida state court ruling in the Terri Schiavo case, another matter of vital concern for social and religious conservatives. The new law ultimately was interpreted by the federal courts, and Frist’s words on the floor of the Senate played a critical role in the outcome.

The issue before the U.S. Court of Appeals for the 11th Circuit was whether the law passed by Congress (Public Law l09-3) required that the federal courts grant Terri Schiavo’s parents a stay ordering that she be transferred to a new hospital and that her feeding tube be reconnected, or whether it merely permitted the courts to issue such an order.

The 11th Circuit ruled that the new law was permissive rather than mandatory and that the lower federal court was not required to issue the order sought by Schiavo’s parents. In so doing, the Circuit Court based its decision on a legislative colloquy on the floor of the U.S. Senate on March 20 between Majority Leader Frist and Michigan Democratic Sen. Carl Levin.

A colloquy is a formal exchange between the primary proponent of a bill and another senator (usually reading from a written script prepared by Senate staffers) that is designed to establish legislative intent. Such legislative intent can be relied upon by a court in interpreting the meaning of a law. That’s exactly what happened in the Schiavo case and it can be argued that Frist handed the federal courts the weapon necessary to defeat the wishes of social and religious conservatives.

There are two logical explanations for Frist’s role in the critical legislative colloquy.

First, it is possible that Frist simply was outsmarted by Levin. After all, Frist is a doctor and not a lawyer and may not have fully understood the meaning of his own words. However, it appears that the two senators were reading from a written script when they entered into the colloquy, and certainly Frist had a lawyer on his staff review the colloquy before he took to the Senate floor to utter the fateful words.

The other possibility is that Frist knew exactly what he was doing and did not want to force the federal courts to reach a certain result even though that clearly was the intent of House Majority Leader Tom DeLay, R-Texas, and social conservatives.

Let’s look at Frist’s exact words as they appear in the Congressional Record: “Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the Federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its determination. Nevertheless, this bill does not change current law under which a stay is discretionary.”

The Circuit Court took Frist’s own words as its rationale for ruling against Schiavo’s parents. To quote the opinion, “This enlightening exchange does not contradict the plain meaning of Pub.L. No. 109-3 but instead reinforces it. Plainly, Congress knew how to change the law to favor these plaintiffs to the extent that it collectively wished to do so.”

Frist’s performance during the Schiavo matter can not give social conservatives a lot of confidence as he steps forward to lead the charge on Supreme Court nominees.

Martin Frost served in Congress from 1979 to 2005, representing a diverse district in the Dallas-Ft. Worth area. He served two terms as chairman of the House Democratic Caucus, the third-ranking leadership position for House Democrats, and two terms as chairman of the Democratic Congressional Campaign Committee. Frost serves as a regular contributor to FOX News Channel. He holds a Bachelor of Journalism degree from the University of Missouri and a law degree from the Georgetown Law Center.

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